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HROB 153 > 153: FINAL > Flashcards

153: FINAL Flashcards

1
Q

One protected class you can’t have is:

A

Race

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2
Q

Original primary purpose of TITLE 7

A

To end race discrimination

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3
Q

Protected class that gives greatest amount of difficulty is:

A

Religion because:

protected by first amendment

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4
Q

2 protected classes that have the greatest number of requirements for reasonable accommodation are:

A

Religion and disability

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5
Q

Disability was not

A

one of the original protected classes

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6
Q

Disability was amended into

A

FEHA

both part of FEDERAL (ADA) and STATE statues (FEHA)

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7
Q

To reasonably accommodate does not mean you have to (if it can be done) (Disability)

A

Don’t have to create a job

Do not have to hire someone to a position that does not exist

Maintain someone who can’t perform the vital work duties of the position

Must reasonably accommodate if possible.

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8
Q

Must reasonably accommodate religion…does not mean

A

Does not mean you have to sway away from a seniority system (TWA case-airline-7 day adventist didn’t want to work Saturday-court agreed with TWA and not going to change the way they’ve been doing business/do do business in order to accommodate)

has to fit within both essential job functions and it has to fit within a seniority system or other type of preference given on the job.

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9
Q

One of the great areas of litigation in National origin:

A

English Only

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10
Q

Spun State gave us rule that

A

You can have english only rules especially those who have direct contact with the public

Those people who don’t have contact with the public but are BILINGUAL.

Certain limitations

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11
Q

Can’t have english only rules for those

A

who are not able to speak english because you are depriving them the ability to communicate around the job.

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12
Q

EEOC issued guideline that there was a

A

presumption of national origin discrimination by the existence of the “english only rule”

Court said no. You can have it

The question was if they’re able to communicate or not

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13
Q

EEOC issued guideline that there was a

A

presumption of national origin discrimination by the existence of the “english only rule”

Court said no. You can have it

The question was if they’re able to communicate or not

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14
Q

National Labor Relations act

A

Act that gave tremendous amount of RIGHTS and POWER to union

Gave us unfair labor practices as applied to management

Allowed for strikes, rehire (for those striking so long as it was based on unfair labor practice)

Said there was a duty to negotiate in good faith (don’t have to reach final agreement but have the duty to negotiate in good faith)

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15
Q

Taft Hartley Act told us

A

That Unions can also have unfair labor practices, that Unions could also be in violation of the law.

Did not change right to strike

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16
Q

Exception to right to strike:

A

Wildcat Strike: strike called by a group of workers without anyone’s (union/manager’s) proof. Not protected by NLRA

Not part of formal bargaining process set out by NLRA

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17
Q

Under NLRA, bargaining (2):

A

Permissive and mandatory bargaining matters

Mandatory: everything that has to do with conditions of employment-wages, hours, benefits (HAVE TO TALK ABOUT, don’t have to reach agreement)

Permissive: can negotiate about either topics the union or manager feels strongly about, but you don’t have to (health club memberships, uniform allowances, etc)

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18
Q

Workers’ Compensation was no fault system:

A

Set out so someone is compensated for injury on the job and don’t have to prove employer was negligent

Award, judgement is smaller than it would have been if they had proven negligence. Whole point of Toland and Privette.

Employment bargain. Third party tort fees can be liable for more than employer

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19
Q

Two exceptions to the limitations of the capitacians to the no fault nature of workers’ compensation

A

-Labor code 132A

132A is the section that says you can’t retaliate against someone for bringing a workers’ compensation claim. You will be subject to civil and criminal penalties

-Serious and willful violation: when employer knew or should have known that they were putting the worker into a dangerous position in the work that they were performing without putting in adequate safeguards. (car brakes example)

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20
Q

McDonnell Douglas test:

A

Test that supreme court gave us to show DISPARATE TREATMENT

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21
Q

McDonnell Douglast test, court said:

A

The way that we’re going to prove discrimination is the prima fascia showing:

Membership in a protected class

Qualified to be hired or performing adequately

Adverse job action (fired)

Endice (indication, evidence) of discrimination

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22
Q

Once plaintiff has shown prima fascia showing…

A

the defendant can show that there was a GOOD FAITH reason for their action (layoff, closing office)..

burden then shifts to the plaintiff and the plaintiff has to show PRETEXT (NOT TRUE)

Yeah you closed the office but you just put out a job offering for the job that person had!

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23
Q

Age discrimination has its own federal statute:

A

separate, apart from title 7 but tracks with title 7, (McDonnell Test)

FEDERAL: ADEA: AGE DISCRIMINATION IN EMPLOYMENT ACT

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24
Q

Prima fascia showing applies to:

A

all protected classes including disability discrimation-federal (ADA), state (FEHA)

and also deals with age discrimination

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25
Q

ADEA (federal)

A

Protected class is ANYONE OVER 40.

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26
Q

Age discrimination is unique

A

protects people dependent on their age, even in the protected class

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27
Q

Age is…

A

relative and must be taken into consideration. Someone who is 45 is more like someone who is 39 than someone who is 60

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28
Q

Age was amended into

A

FEHA (state) and part of fair employment and housing act despite it has its separate statute on federal level.

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29
Q

Arbitration is …

A

cheaper and faster than binding!

There is no extent in law than civil litigation

Faster because typical arbitration goes to hearing 6 months after,

typical trial 18-24 months …FINAL

Can’t appeal arbitration unless you can show some kind of fraud

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30
Q

Judgement you can always

A

appeal

obligation on district court of appeal to hear your appeal

any case you can appeal

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31
Q

ERISA (employment retirement income security act)

A

cast by congress in answer to wrongdoing within pension plans that had been done by both business and labor unions companies. Companies used those pension funds for improper purposes so congress passed ERISA

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32
Q

ERISA originally passed to

A

regulate pension plans

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33
Q

ERISA includes all

A

employee benefit plans (health, dental, disability-all of these health plans under ERISA, not workers’ comp)

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34
Q

Important things to remember about ERISA:

A

1) It preempts any state statute (there can’t be a state statute that deals with pension funds, healthcare plans, EXCLUSIVE FEDERAL JURISDICTION

Because congress said that pension plans being mishandled and misused are NATIONAL PLANS. Don’t want separate law in CA than other states. Want one law across country that applies to all pension funds/plans

No matter where you are employed, you have that same protection!

If you want to sue someone regarding ERISA, you have to go to FEDERAL COURT

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35
Q

Fair labor standard act passed to end

A

child labor but then expanded to include a lot more than child labor (minimum wage)

Sets MINIMUM as far as wage an hour law in the country

FEDERAL STATUTE

Not preemptive. federal minimum wage: $7.25, CA: $10

Allows states and localities to have higher standards

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36
Q

Nonexempt employees (wage an hour law)

A

administrative, supervisorial, professional.

not entitled to overtime, lunch and rest breaks. Theory being they run their own schedule due to the position that they old.

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37
Q

If nonexempt in California

A

you’re entitled to overtime anything above 8 in a day or 40 in a week.

38
Q

Nonexempt on the federal level

A

over 40!

If you work 3 11 hour days, you get 9 hours of overtime (IN CA)

If you work 3 11 hour days and you’re nonexempt, you get NONE.

39
Q

Brinker restaurant v. Superior Court

A

case that told us who could be in a class, define classes for class action lawsuits

Said that it’s not the employer’s responsibilities to MAKE SURE employees take their lunch breaks but to MAKE IT AVAILABLE (30 mins of unpaid leave) of 8 hour shift

Employee had a responsibility to keep track if they’re not getting their lunch break and that the employee is entitled to compensation if they are working through their lunch break. In CA, if you work your 8 hour shift through lunch, you’re entitled to half hour overtime.

40
Q

What is the FMLA

A

FEDERAL STATUTE

Family medical leave act

Same as CFRA

Provide for 3 months of unpaid medical leave in a 12 month period.

If you have a qualifying illness or injury to yourself, your spouse, your children, your parents.

41
Q

What is the CFRA

A

STATE STATUTE

California family rights act

Provide same as FMLA

Provide for 3 months of unpaid medical leave in a 12 month period.

If you have a qualifying illness or injury to yourself, your spouse, your children, your parents.

42
Q

FMLA…

A

Like Title 7 and FLSA sets MINIMUM (NOT LIKE ERISA)

43
Q

CFRA provides

A

greater risk for employee. Can be CFRA violation and not FMLA violation

when doctor asked employee to disclose illness to employer

44
Q

In Sacramento,

A

there is a huge danger in employers who think they can grant compensatory time off instead of overtime.

Reason companies believe they can do that is because the state does it. State doesn’t have to comply with its own labor law! Paid once a month, employees paid 3 times a month?

45
Q

Compensatory time off is not

A

a takeaway or an obligation to overtime!

46
Q

Independent contractor is REQUIRED

A

To get WORKERS COMP insurance for employees!

47
Q

Landrum Griffin Act is

A

Act regarded to labor law!

Act that served as protection to union members against the union.

Said unions had to disclose how union dues are spent, duty to the membership, that they couldn’t use union funds for their own purpose, could not take business position in conflict with union

48
Q

Landrum Griffin defined…

A

the rights of the union members to have access to full disclosure, appropriate use of funds, proper elections

49
Q

Customer preference is

A

NOT A BFOQ!!!!!!!!

50
Q

How does Abercrombie and fitch, and Hooters get past customer preference “bfoq”?

A

Term waitresses as “ENTERTAINERS” not as waitresses

Term sales associates as “MODELS” not as sales associates

51
Q

Taft Hartley is and did away with

A

managements answer to the NLRA

closed shop, that you have to be able to be a union member before you’re hired

allowed for union shop? don’t have to be a member before you’re hired but within 30-60 days, have to become a member of the union

Allowed for agency shops which is where you’re not required to join the union.

52
Q

Never have to become a member under agency shop but

A

have to pay fair share!

53
Q

Right to work states:

A

22 states that under the Taft hartley right to work that you don’t have to join the union or pay the agency fee at all

FREE RIDERS, those who derive benefits from unions, negotiations, representations but don’t have to pay for any of it.

People that belong to the union are required to pick up the FREE RIDERS’ share!

54
Q

Right to sue:

A

Only in those 22 states, primarily REPUBLICAN states!

55
Q

Nurse laguardia was the

A

first of the labor act and found public policy against the labor injections going on that made strikes illegal and that it endorsed collective bargaining and did away with YELLOW DOG contracts which are

56
Q

Yellow dog contract:

A

contracts employers require employees to sign at the time they enter employment that they will not strike and if they did go on strike they would be in breach of contract

If they violated the induction, they would be in contempt of court

57
Q

Need to give…

A

21 days notice and 7days to revoke if they’re waiving their rights for discrimination

Waiving some pension and other benefits?

58
Q

FEHA is the unique statute of limitations in that you have..

A

have a year to file FEHA complaint from the last day of discrimination, harassment or retaliation and a year after issuance of right to sue

Not exactly concurrent, therefore it might be far more than 2 years!

DOESN’T MEAN IT’S 2 YEARS!

59
Q

Foley v. Interactive data told us

A

A) that there is such a thing as implied contract that it is an exception to the “at will” doctrine just like an expressed contract is an exception to the “at will” doctrine.

Implied contract is more difficult because we’re looking at the Foley factors which include the length of employment, performance on the job, discipline, polices/procedures/practices of employer.

60
Q

Expressed and implied contracts, implied covenant of good faith and fair dealing, public policy are

A

exceptions to the At Will Doctrine!

61
Q

Expressed contract is

A

oral or written

lays out specifically the terms of agreement

62
Q

Implied contract, you must look at

A

Foley Factors!!!!!!!!!!!!!!

  • length of employment
  • performance on the job
  • discipline
  • policies, procedures, practices of employer
63
Q

What are the exceptions to the AT WILL DOCTRINE?

A

Expressed and implied contracts, implied covenant of good faith and fair dealing, public policy

64
Q

2 sources for Foley

A

-Contract source (Pew v. Sees candy- said that you could have an implied contract that took you out of at will)

  • Pew was placed on his own retard? Slain by your own sword
  • recognized fact that there could be implied contract
  • set the rules that said you’re at will.

Peterman v. Teamsters union
-Peterman gave us the tort remedies. Early public policy case. Teamsters told peterman to commit perjury, teamsters fired him and peterman sued and said that is breach of public policy. Perjury is a statute

65
Q

Rojo v. Kleiger

A

Public policy exception in Ca

FEHA case

She did not file timely, barred from pursuing her claim. Court said NO

She’s barred from pursuing the statutory claim but she’s NOT barred from pursuing the public policy claim because that too is an exception to the at will doctrine and public policy in the state of California includes its statutes of which FEHA is one.

66
Q

Statutory claims gives you certain rights and remedies that public policy claim does not such as

A

attorney’s fees

67
Q

Turner v. Anheuser Bush

A

Theory on construct discharge

68
Q

Richards v. CH2MHill

A

Continuing violation doctrine

69
Q

Price Waterhouse v. Hopkins

A

Sexual discrimination

70
Q

Fischer v. San Pedro Hospital

A

Defined hostile work environment but it also defined for us the requirement that if you’re pursuing an action for hostile work environment that you first file a complaint with the employer so they have enough time to reasonably investigate and take corrective action.

71
Q

If an employer is uninsured…

A

they are considered liable and negligent

72
Q

2 exceptions to Workers comp coverage

A

132(a)-claims you can’t retaliate against an employee for bringing your claim, or else tort damages and possible criminal liability

Serious & Willful- a claim that a known dangerous condition wasn’t corrected, so insurance won’t pay for this

73
Q

Workers comp is NOT

A

preempted by ERISA, one of the few employee benefit exceptions

74
Q

Constructive discharge:

A

occurs when an employee resigns as a result of the employer creating a hostile work environment. Since the resignation was not truly voluntary, it is in effect a termination

75
Q

2 Limitations of the duty to mitigate

A

You are not expected to look outside of your area of profession for work. So if you’re lawyer, you don’t have to find a job at walmart

Reasonable Geographic Area is taken into consideration, because people shouldn’t have to relocate for their job

76
Q

ERISA covers 2 types of retirement plans

A
  • Defined Benefit: based on income, age, and years of service. This allows us o know exactly what our retirement income will be. Applies to public and union employees
  • Defined Contribution: amount of money set aside every year.
77
Q

2 parts of national origin

A

Country of origin(not where they’re from, but country where ancestry is from)

Physical, cultural and linguistic characteristics

78
Q

2 exceptions to National origin discrimination

A

Large, multinational corporations with headquarters OUTSIDE the US can give preferences to citizens of their own country

Indian casinos are exempt because they are considered their own separate nation.

79
Q

Garcia v. Spun Steak

A

Example of the litigation that occurs around “English only” workplace rules, because it is the most common national origin BFOQ

80
Q

OSHA

A

Not preclusive or preemptive

Promotes safe working conditions through: regulations, surprise inspections and enforcement of general duty.

Provides statutory remedies for affected employees, employer cannot retaliate

Can bring an action and seek fines if appropriate

81
Q

OSHA 2 basic requirements from employers

A

Compliance requirement: employers must comply with all department of safety health standards

General duty clause: the employer is to provide employees with a safe place of employment that is free from recognized hazards that can cause or likely to cause death or serious bodily harm to all employees

82
Q

Wagner Act (NLRA) gives employees (3 rights)

A

The right to unionize

The right to bargain collectively

The right to strike (except for people in public health and safety roles, they have binding arbitration instead of striking)

83
Q

Section VII of NLRA:

A

Protect “Concerted Activity”

  • Defined as actions taken on behalf of employees through bargaining unit
  • Ensures mutual aid or protection and Union actions

Absolute duty in NLRA for parties to act in good faith and fair bargaining

84
Q

NLRA gave us the NLRB (National Labor Relations Board)

NLRB Duties (3) :

A

Legislative: promulgates regulation

Executive- branch appointed by the president and it administers laws

Judiciary- disputes for these laws, heard by board

85
Q

Norris LaGuardia Act:

A

Act based on the premise that a job is more important to the employee that the employer. First venture into protecting the rights of union members

86
Q

Norris LaGuardia Act endorses:

A

Collective Bargaining which is a representative of the labor meeting with representatives of management to make an agreement. Employer v. Bargaining unit.

87
Q

Bargaining Unit must have a

A

Community of Interest which means they have common factors for bargaining purposes for the employees (truck drivers have a bargaining unit)

88
Q

When all bargaining pieces come together, it is called…

A

Collective Bargaining Unit (CBA) or Memorandum of Understanding.

89
Q

2 Kinds of bargaining subjects:

A

Permissive- subjects in which there is no requirement to bargain over during the collective bargaining process. includes things like health club memberships

Mandatory: these subjects are required to be brought up during the collective bargaining process to meet the guidelines of good faith, or else it would be an unfair labor practice (WAGES, BENEFITS)

90
Q

Yellow dog contracts are

A

ILLEGAL, it is a pre employment contract that employees sign, waiving their rights to strike.

HROB 153 (4 decks)

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